Anticipated Judicial Vacancies and the Power to Nominate

Note — Volume 93, Issue 4

93 Va. L. Rev. 1135
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In July 2005, Justice Sandra Day O’Connor retired, but her retirement was expressly effective only upon the nomination and confirmation of her successor. As such, Justice O’Connor served on the Court for more than six additional months while the President nominated three different individuals to her seat and secured the confirmation of Justice Samuel A. Alito. 

This Note addresses a simple, but unaddressed question: what triggers the President’s constitutional power to nominate under the Appointments Clause? The Note argues that there is a vacancy prerequisite to the operation of the Appointments Clause that requires either an actual vacancy in the office to be filled, or a sufficiently definite and irrevocable anticipated vacancy in such an office. 

After briefly discussing the relatively recent development of the judicial retirement option, this Note turns to unique issues presented when life-tenured, Article III justices and judges retire. When an irremovable federal judge announces the intention to retire on some future date, that mere announcement does not create a sufficiently definite and irrevocable vacancy to trigger the operation of the Appointments Clause. Instead, the nomination and confirmation of successors upon anticipated judicial vacancies generate tension with the intended operation of the appointments process as well as underlying constitutional norms of judicial independence. Triggering the appointments process on a justice or judge’s intention to retire in the future may allow an “incumbent’s veto” over nominated successors, skew the advice and consent role of the Senate, delegate a removal-like power to the political branches, and establish a kind of “holdover judge” where vacancies would otherwise allow for the operation of the Recess Appointments Clause. 

This Note concludes that due to the considerable constitutional difficulties that are presented, the Executive should not assume the power to nominate is constitutionally triggered by anticipated judicial vacancies.

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